Citation Nr: 0531137
Decision Date: 11/18/05 Archive Date: 11/30/05
DOCKET NO. 04-00 484 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in No. Little
Rock, Arkansas
THE ISSUES
1. Entitlement to service connection for post traumatic
stress disorder.
2. Entitlement to service connection for a low back
disability.
3. Entitlement to service connection for a skin disability
of the hands.
4. Entitlement to service connection for pseudofolliculitis
barbae.
5. Entitlement to service connection for a duodenal ulcer.
6. Whether new and material evidence has been received to
reopen a claim for service connection claim for a psychiatric
disability.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Thomas D. Jones, Counsel
INTRODUCTION
The veteran served on active duty from March 1973 to August
1974.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a January 2003 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
North Little Rock, Arkansas, which denied the veteran's
claims seeking entitlement to service connection for post
traumatic stress disorder, a low back disability, a skin
disability of the hands, pseudofolliculitis barbae, and a
duodenal ulcer, and found no new and material evidence had
been submitted to reopen the veteran's service connection
claim for a psychiatric disability.
In July 2005, the veteran testified via videoconference
before the undersigned Veterans Law Judge. The veteran also
submitted additional evidence in support of his claim, along
with a signed waiver of agency of original jurisdiction
consideration. Therefore, a remand for RO consideration of
this evidence is not necessary at this time.
The issues of entitlement to service connection for a skin
disability and for pseudofolliculitis barbae are addressed in
the REMAND portion of the decision below and are REMANDED to
the RO via the Appeals Management Center (AMC), in
Washington, DC.
FINDINGS OF FACT
1. VA has given the veteran all required notice, and has
rendered all required assistance.
2. The veteran did not engage in combat with the enemy
during military service.
3. The veteran has not presented credible supporting
evidence of an in-service stressor.
4. Competent evidence has not been presented of a current
disability of the lumbosacral spine for which service
connection may be granted.
5. Competent evidence has not been presented that the
veteran's duodenal ulcer was incurred in or within a year
after active military service.
6. In April 1991, the Board denied entitlement to service
connection for a psychiatric disability.
7. The evidence received since the April 1991 Board denial
of the veteran's claim for service connection for a
psychiatric disability does not raise a reasonable
possibility of substantiating the claim.
CONCLUSIONS OF LAW
1. PTSD was not incurred in or aggravated by active service.
38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp.
2005); 38 C.F.R. §§ 3.303, 3.304(f) (2005).
2. A lumbosacral spine disability was not incurred in or
aggravated by active service. 38 U.S.C.A. §§ 1110, 5103,
5103A, 5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.303,
3.304 (2005).
3. A duodenal ulcer was not incurred in or aggravated by
active service, and may not be presumed to have been incurred
therein. 38 U.S.C.A. §§ 1110, 1112, 1113, 5103, 5103A, 5107
(West 2002 & Supp. 2005); 38 C.F.R. §§ 3.303, 3.304, 3.307,
3.309 (2005).
4. The April 1991 Board decision that denied service
connection for a psychiatric disability is final; this claim
for service connection may only be reopened based on the
submission of new and material evidence. 38 U.S.C.A.
§§ 5108, 7104 (West 2002); 38 C.F.R. § 3.156 (2005).
5. Evidence submitted since the Board's 1991 decision is not
new and material with respect to the claim for service
connection for a psychiatric disability, and the claim for
that benefit may not be reopened. 38 U.S.C.A. § 5108 (West
2002); 38 C.F.R. §§ 3.102, 3.156(a) (2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Veterans Claims Assistance Act of 2000
The Veterans Claims Assistance Act of 2000 (VCAA) describes
VA's duty to notify and assist claimants in substantiating a
claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5107, 5126 (West 2002 & Supp. 2005); 38 C.F.R.
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2005).
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his or her representative, if any, of any
information, and any medical or lay evidence, that is
necessary to substantiate the claim. 38 U.S.C.A. § 5103(a)
(West 2002 & Supp. 2005); 38 C.F.R. § 3.159(b) (2005);
Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA
notice must inform the claimant of any information and
evidence not of record (1) that is necessary to substantiate
the claim; (2) that VA will seek to provide; (3) that the
claimant is expected to provide; and (4) must ask the
claimant to provide any evidence in her or his possession
that pertains to the claim in accordance with 38 C.F.R.
§ 3.159(b)(1). VCAA notice should be provided to a claimant
before the initial unfavorable agency of original
jurisdiction (AOJ) decision on a claim. Pelegrini v.
Principi, 18 Vet. App. 112 (2004); see also Mayfield v.
Nicholson, 19 Vet. App. 103 (2005).
In this case, for the reasons set forth below, the VA has
complied with the VCAA, as well as the implementing
regulations, in reference to the issues addressed on appeal.
First, VA has a duty to notify the claimant and the
representative, if any, of any information and evidence
needed to substantiate and complete a claim. 38 U.S.C.A. §
5103A (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v.
Principi, 16 Vet. App. 183 (2002). The veteran has been
informed of the evidence needed to show his entitlement to
the claimed benefits via October 2002 and February 2005 RO
letters, a January 2003 rating decision and subsequent rating
decisions, the October 2003 statement of the case (SOC), and
the August 2004 supplemental statement of the case (SSOC).
In addition, the RO letters issued in October 2002, November
2002, and February 2005, the October 2003 SOC, and August
2004 SSOC provided the veteran with specific information
relevant to the VCAA. Thus, no further notices are required.
See Quartuccio, supra.
Secondly, VA has a duty to assist the claimant in obtaining
evidence necessary to substantiate the case. 38 U.S.C.A. §
5103A; 38 C.F.R. § 3.159(c). In this case, all identified
and available evidence has been obtained, including all
relevant treatment records and examination reports. Thus,
the Board finds that no additional evidence, which may aid
the veteran's claims or might be pertinent to the bases of
the claims, has been submitted, identified or remains
outstanding, and the duty to assist requirement has been
satisfied. See Quartuccio, supra.
Furthermore, the Board finds that the claimant has been
provided with every opportunity to submit evidence and
argument in support of his claims and to respond to VA
notices. Although the VA notices that were provided to the
appellant do not contain the "fourth element" per se, the
Board finds that the appellant was otherwise fully notified
of the need to give to VA any evidence pertaining to his
claims. By the informational letter, the rating decisions,
the SOC, the Board remand, and the SSOC, VA satisfied the
fourth element of the notice requirements. Therefore, to
decide the appeal regarding the veteran's claims discussed
herein would not be prejudicial error to the claimant. See
VAOPGCPREC 7-2004.
The Board acknowledges that, in Pelegrini v. Principi, 18
Vet. App. 112 (2004), the U.S. Court of Appeals for Veterans
Claims (Court) held, in part, that a VCAA notice, as required
by 38 U.S.C.A. § 5103(a), must be provided to a claimant
before the initial unfavorable agency of original
jurisdiction (AOJ) decision on a claim for VA benefits. In
the present case, in an October 2002 RO letter (as well as in
any subsequent letters), the veteran was given notice of the
VCAA requirements, which was prior to the initial January
2003 unfavorable AOJ decision that is the basis of this
appeal.
In this respect, the October 2002 RO letter properly notified
the appellant of the evidence required to substantiate his
claims for VA benefits. In addition, the reasons and bases
of the January 2003 rating decision, the SOC, and the
subsequent SSOC specifically explained to the appellant what
the evidence must show in order to establish entitlement to
service connection for the claimed disabilities. In
addition, November 2002 letter advised the veteran what
evidence is considered new and material.
Furthermore, although it is unclear from the record whether
the appellant was explicitly asked to provide "any evidence
in [his] possession that pertains" to his claim, the Board
finds as a practical matter that he has been notified of the
need to provide such evidence. See 38 C.F.R. § 3.159(b)(1)
(2005). The AOJ's letters to the veteran informed him that
additional information or evidence was needed to support his
claims, and asked him to send the information or evidence to
the AOJ. In addition, the SOC and SSOC contained the
complete text of 38 C.F.R.
§ 3.159(b)(1), which includes such notice. Under these
circumstances, the Board is satisfied that the appellant has
been adequately informed of the need to submit relevant
evidence in his possession.
II. Service connection - Post traumatic stress disorder
The veteran seeks service connection for post-traumatic
stress disorder. Service connection may be awarded for a
current disability arising from a disease or injury incurred
in or aggravated by active military service. 38 U.S.C.A.
§ 1110 (West 2002); 38 C.F.R. § 3.303, 3.304 (2005). As with
any claim, when there is an approximate balance of positive
and negative evidence regarding any matter material to the
claim, the claimant shall be given the benefit of the doubt.
38 U.S.C.A. § 5107 (West 2002).
Service connection for post traumatic stress disorder
requires medical evidence establishing a diagnosis of the
disorder, credible supporting evidence that the claimed in-
service stressor(s) actually occurred, and a link,
established by medical evidence, between current
symptomatology and the claimed in-service stressor. 38
C.F.R. § 3.304(f) (2005).
The evidence necessary to establish the occurrence of a
recognizable stressor during service to support a post-
traumatic stress disorder diagnosis will vary depending upon
whether the veteran engaged in "combat with the enemy."
See 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(f)
(2005); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993).
Participation in combat requires that the veteran have
personally participated in events constituting an actual
fight or encounter with a military foe or hostile unit or
instrumentality. See VAOPGCPREC 12-99 (October 18, 1999).
If the VA determines the veteran engaged in combat with the
enemy and his alleged stressor is combat-related, then his
lay testimony or written statement is accepted as conclusive
evidence of the stressor's occurrence and no further
development or corroborative evidence is required - provided
that such testimony is found to be "satisfactory," i.e.,
credible and "consistent with circumstances, conditions or
hardships of service." See 38 U.S.C.A. § 1154(b) (West
2002); 38 C.F.R. § 3.304(f) (2005); Zarycki, 6 Vet. App. at
98.
If, however, the VA determines either that the veteran did
not engage in combat with the enemy or that he did engage in
combat, but that the alleged stressor is not combat related,
then his lay testimony, in and of itself, is not sufficient
to establish the occurrence of the alleged stressor.
Instead, the record must contain evidence that corroborates
his testimony or statements. Id. Service department
records must support, and not contradict, the claimant's
testimony regarding noncombat stressors. Doran v. Brown, 6
Vet. App. 283 (1994); see also, Fossie v. West, 12 Vet.
App. 1, 6 (1998) (wherein the Court stated, "If the veteran
engaged in combat, his lay testimony regarding stressors will
be accepted as conclusive evidence of the presence of in-
service stressors"). If, however, the veteran was not
engaged in combat, he must introduce corroborative evidence
of his claimed in-service stressors.
In the present case, the veteran's service personnel records
are negative for any indications of combat participation, and
his DD Form 214 is negative for the award of the Combat
Infantryman's Badge, Purple Heart medal, or similar combat
awards. The veteran has not claimed combat participation;
rather, his claimed stressor involves the death of a fellow
soldier who the veteran declined to accompany off base one
night. Therefore, because the Board finds the veteran's
record does not reflect combat participation, corroborative
evidence must be presented of his claimed in-service
stressors.
According to his account, one of the veteran's friends and
fellow soldiers invited the veteran to join him going out one
night. The veteran declined. Later that night, the fellow
soldier was assaulted and killed, and the veteran experienced
guilt over not having gone with him that evening. However,
the veteran has not offered any evidence, other than his own
contentions, to verify his claimed stressor. He has stated
he is unable to remember the name of the murdered soldier, or
provide other verification of this incident. He has also not
provided sufficient information to VA to seek verification of
his claimed stressor from the U.S. Armed Services Center for
Research of Unit Records or similar sources. Because the
veteran's stressor cannot be verified, and the Board cannot
accept his uncorroborated accounts, this stressor cannot be
accepted by the Board. In the absence of any verified or
verifiable stressor, the veteran's claim for service
connection for post traumatic stress disorder must be denied.
The veteran has himself suggested he has post traumatic
stress disorder as a result of an in-service stressor event;
however, as a layperson, his statements regarding medical
etiology, causation, and diagnosis are not competent
evidence. Espiritu v. Derwinski, 2 Vet. App. 492 (1992).
Overall, the preponderance of the evidence is against a grant
of service connection for post traumatic stress disorder, as
the veteran has not alleged any verifiable in-service
stressor events. As a preponderance of the evidence is
against the award of service connection, the benefit of the
doubt doctrine is not applicable in the instant appeal. See
38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274
F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet.
App. 49, 55-57 (1991).
III. Service connection - Low back disability
The veteran seeks service connection for a low back
disability. Service connection may be awarded for a current
disability arising from a disease or injury incurred in or
aggravated by active military service. 38 U.S.C.A. § 1110
(West 2002); 38 C.F.R. § 3.303, 3.304 (2005). Service
connection may also be awarded for certain disabilities, such
as arthritis, which manifest to a compensable degree within a
statutorily-prescribed period of time. 38 U.S.C.A. §§ 1112,
1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2005). As
with any claim, when there is an approximate balance of
positive and negative evidence regarding any matter material
to the claim, the claimant shall be given the benefit of the
doubt. 38 U.S.C.A. § 5107 (West 2002).
The service medical records indicate the veteran was seen on
several occasions during military service for low back pain.
The veteran first reported back pain in April 1973.
Paraspinal tenderness was observed, and a muscle spasm was
diagnosed. In November 1973, he again reported low back pain
of several months' duration. X-rays revealed a marked
lordosis of the lumbosacral spine, and a postural backache
was diagnosed. Similar complaints of low back pain were
noted in December 1973 and April 1974. On service separation
medical examination, the veteran was without any abnormality
of the back.
More recently, the veteran has submitted no evidence of a
current low back disability. Although he has submitted both
private and VA medical records subsequent to service, these
records are negative for a current disability of the spine.
"Congress specifically limits entitlement for service-
connected disease or injury to cases where such incidents
have resulted in a disability. In the absence of proof of a
present disability there can be no valid claim." Brammer v.
Brown, 3 Vet. App. 223, 225 (1992); see also Rabideau v.
Derwinski, 2 Vet. App. 141, 143-44 (1992). In this case,
service connection may only be establish for an actual
disability of the lumbosacral spine, which is not currently
shown by the evidence. Low back symptomatology, in and of
itself, is not sufficient to establish service connection.
Although the veteran has subjective complaints of low back
pain, there is no objective medical evidence in the record
that shows his lumbosacral spine has a current diagnosable
disorder. Pain alone, without a diagnosed or identifiable
underlying malady or condition, does not in and of itself
constitute a disability for which service connection may be
granted. Sanchez-Benitez v. West, 13 Vet. App. 282, 285
(1999), appeal dismissed in part, and vacated and remanded in
part sub nom, Sanchez-Benitez v. Principi, 259 F.3d 1356
(Fed. Cir. 2001).
The Board also acknowledges the veteran's argument that he
currently suffers from a low back disorder. However, the law
is clear that "where the determinative issue involves
medical causation or a medical diagnosis, competent medical
evidence is required." Grottveit v. Brown, 5 Vet. App. 91,
93 (1993); see also Espiritu v. Derwinski, 2 Vet. App. 492,
494 (1992) (holding that a witness must be competent in order
for his statements or testimony to be probative as to the
facts under consideration). Hence, the veteran's lay opinion
is not binding on the Board.
In conclusion, the preponderance of the evidence is against
the award of service connection for a low back disability, as
a current disability of the low back has not been
demonstrated. As a preponderance of the evidence is against
the award of service connection, the benefit of the doubt
doctrine is not applicable in the instant appeal. See
38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274
F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet.
App. 49, 55-57 (1991).
IV. Service connection - Duodenal ulcer
The veteran seeks service connection for a duodenal ulcer.
Service connection may be awarded for a current disability
arising from a disease or injury incurred in or aggravated by
active military service. 38 U.S.C.A. § 1110 (West 2002);
38 C.F.R. § 3.303, 3.304 (2005). Service connection may also
be awarded for certain disabilities, such as ulcers, which
manifest to a compensable degree within a statutorily-
prescribed period of time. 38 U.S.C.A. §§ 1112, 1113, 1137
(West 2002); 38 C.F.R. §§ 3.307, 3.309 (2005). As with any
claim, when there is an approximate balance of positive and
negative evidence regarding any matter material to the claim,
the claimant shall be given the benefit of the doubt.
38 U.S.C.A. § 5107 (West 2002).
The veteran's service medical records indicate he was seen on
several occasions during service for nausea, vomiting, and
abdominal pain. He was initially given medication, which
provided only temporary relief. In November 1973, an upper
gastrointestinal study was performed which was negative. On
service separation medical examination in July 1974, no
abnormality of the veteran's gastrointestinal was noted.
Subsequent to service, the veteran has alleged that he
received medical care for an duodenal ulcer within a year of
service separation. However, he has neither submitted those
treatment records to VA, or authorized VA to obtain them on
his behalf. At his July 2005 hearing, the veteran also
stated he was currently receiving private medical care for
his duodenal ulcer, and indicated he would be submitting
those records to VA, but to date he has not done so. "[T]he
duty to assist is not always a one-way street. If a veteran
wishes help, he cannot passively wait for it in those
circumstances where he may or should have information that is
essential in obtaining the putative evidence." Wood v.
Derwinski, 1 Vet. App. 190, 193 (1991). In the absence of
the veteran's cooperation in obtaining private medical
records, which VA cannot obtain without his permission, VA
has no further obligations regarding these records.
In the absence of competent evidence indicating a duodenal
ulcer was incurred during military service or within a year
thereafter, service connection for a duodenal ulcer must be
denied. Both the veteran's service medical records and
immediate post-service medical records are negative for a
duodenal ulcer. In the absence of competent evidence that
such a disability was incurred during or within a year after
military service, service connection for a duodenal ulcer
must be denied.
The veteran himself contends he has a current duodenal ulcer
which was incurred during military service; however, as a
layperson, his statements regarding medical diagnosis and
etiology are not binding on the Board. Espiritu v.
Derwinski, 2 Vet. App. 492 (1992).
In conclusion, the preponderance of the evidence is against
the veteran's claim for service connection for a duodenal
ulcer, as such a disability was not incurred during military
service or within a year thereafter. As a preponderance of
the evidence is against the award of service connection, the
benefit of the doubt doctrine is not applicable in the
instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz
v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v.
Derwinski, 1 Vet. App. 49, 55-57 (1991).
VII. New and material evidence - Psychiatric disability
The veteran seeks to reopen a claim for service connection
for a psychiatric disability. Service connection for a
psychiatric disability was denied by the Board in an April
1991 decision, and that decision is final. 38 U.S.C.A.
§ 7104 (West 2002). A final decision may not be reopened
unless new and material evidence is received. 38 U.S.C.A.
§ 5108 (West 2002); 38 C.F.R. § 3.156 (2005)
Under applicable criteria, a claim that is the subject of a
prior final denial may be reopened if new and material
evidence is received with respect to that claim. If the
claim is thus reopened, it will be reviewed on a de novo
basis, with consideration given to all the evidence of
record. 38 U.S.C.A. §§ 5108, 7105 (West 2002); Evans v.
Brown, 9 Vet. App. 273 (1996); Manio v. Derwinski, 1 Vet.
App. 140 (1991). New evidence is defined as existing
evidence not previously submitted to the VA, and material
evidence is defined as existing evidence that, by itself or
when considered with previous evidence of record, relates to
an unestablished fact necessary to substantiate the claim.
New and material evidence can be neither cumulative nor
redundant of the evidence of record at the time of the last
prior final denial of the claim sought to be reopened, and
must raise a reasonable possibility of substantiating the
claim. 38 C.F.R. § 3.156(a) (2005).
The evidence that is considered to determine whether new and
material evidence has been received is the evidence received
since the last final disallowance of the appellant's claim on
any basis. Evans v. Brown, 9 Vet. App. 273 (1996). This
evidence is presumed credible for the purposes of reopening
the appellant's claim, unless it is inherently false or
untrue, or if it is in the nature of a statement or other
assertion, it is beyond the competence of the person making
the assertion. Duran v. Brown, 7 Vet. App. 216 (1995);
Justus v. Principi, 3 Vet. App. 510 (1992); see also
Robinette v. Brown, 8 Vet. App. 69 (1995).
When the veteran's claim was previously considered and denied
by the Board, the Board found that he had a neurosis at the
time he entered military service, and the evidence did not
indicate any aggravation of this disability therein. For the
reasons to be discussed below, the Board finds the veteran
has not submitted new and material evidence regarding this
claim, and his application to reopen must be denied.
In support of his claim, the veteran has submitted private
medical treatment records, including 1993 and 1997
psychiatric treatment records. In 1993, he was treated for
major depression due to conflicts at work and within his
marriage. He was seen again in 1997 for psychiatric symptoms
resulting from problems at his job. He reported auditory
hallucinations beginning in 1986, as well as anxiety and
depression. The examiner diagnosed major depression with
psychotic features, and schizoid personality traits.
The veteran has also offered his own assertions, including
his personal testimony at his July 2005 Board hearing, in
support of his claim. He stated that he first began to
experience psychiatric symptoms during military service, and
continues to experience such symptoms currently.
Considering first the veteran's private psychiatric treatment
records, these records are new, in that they were not of
record at the time of the April 1991 Board decision.
However, by merely confirming a current diagnosis of a
psychiatric disability, these records are cumulative and
redundant of evidence already of record. None of the
submitted private medical records suggest the veteran's
current psychiatric disabilities were either incurred in or
aggravated by active military service. Thus, the veteran's
post-1991 private treatment records are not new and material,
and may not be used to reopen his service connection claim.
The veteran's own contentions that a psychiatric disability
first manifested during military service are also not new and
material evidence. As a layperson, his statements regarding
medical causation, etiology, and diagnosis do not constitute
new and material which is binding on the Board. See Moray v.
Brown, 5 Vet. App. 211 (1993). The Board also observes that
the veteran's current contentions are essentially similar to
those considered and rejected by the Board in the 1991 denial
and are thus not new, but are cumulative and redundant.
In conclusion, the veteran has not submitted any new and
material evidence that may be used to reopen his claim for
service connection for a psychiatric disability. In the
absence of any new and material evidence, his application to
reopen must be denied.
ORDER
Service connection for post traumatic stress disorder is
denied.
Service connection for a low back disability is denied.
Service connection for a duodenal ulcer is denied.
New and material evidence not having been received, the
veteran's application to reopen his claim for service
connection for a psychiatric disability is denied.
REMAND
The veteran seeks service connection for a skin disability of
the hands, and for pseudofolliculitis barbae. According to
his service medical records, he was treated for "shaving
bumps" during military service, and also for a skin rash
characterized by peeling of the palms. More recently, he has
received extensive treatment for a skin rash of the hands and
feet. He has also stated he has experienced recurrent bumps
on his face since military service. The veteran is certainly
competent to offer lay evidence regarding easily observable
symptomatology. See Falzone v. Brown, 8 Vet. App. 398, 405
(1995). Because the veteran alleges he has a current
disability which is shown by the service medical records to
have been diagnosed in service, further development is
required. VA is obligated to make reasonable efforts to
assist a claimant in obtaining evidence necessary to
substantiate his claim. 38 U.S.C.A. § 5103A (West 2002).
That duty to assist includes providing a medical examination
and/or obtaining a medical opinion statement when such an
examination becomes necessary to substantiate the claim.
38 U.S.C.A. § 5103A(d) (West 2002).
Therefore, in light of the above, these issues are REMANDED
for the following additional development:
1. The RO should contact the veteran and ask
that he identify all sources of medical
treatment not already of record for his
claimed skin disabilities. He should also be
requested to furnish signed authorizations
for release to the VA of private medical
records in connection with each non-VA source
identified. Additionally, the RO should
request that the veteran provide information
as to the dates of any treatment for these
disabilities at any VA Medical Center (VAMC).
Copies of the medical records (not already in
the claims folder) from all sources should be
requested. All records obtained should be
added to the claims folder. If requests for
any private treatment records are not
successful, the RO should inform the veteran
of the nonresponse so that he will have an
opportunity to obtain and submit the records
himself, in keeping with his responsibility
to submit evidence in support of his claim.
38 C.F.R. § 3.159 (2005). The RO should also
request or tell the veteran to provide any
evidence in his possession that pertains to
his claim. Furthermore, the veteran should
be specifically informed as to what portion
of evidence he is required/expected to
submit, and which portion of the evidence the
VA would attempt to obtain in order to assist
the veteran in substantiating his claim, per
38 U.S.C.A. §§ 5103(a), 5103A; Quartuccio v.
Principi, 16 Vet. App. 183 (2002).
2. The veteran should be scheduled for a
VA dermatological examination in order to
determine the existence and etiology of
any current skin disabilities. The
claims file should be reviewed by the
examiner in conjunction with the
examination. The examination should
include any tests considered necessary by
the examiner. After fully reviewing the
record and examining the veteran, the
examiner should note whether the veteran
currently has any skin disabilities, to
include pseudofolliculitis barbae, and
any skin disabilities of the hands and/or
feet. If so, for any skin disability
noted, the examiner should also state
whether it is at least as likely as not
(that is, a probability of 50 percent or
better) that such a disability began
during military service, or is otherwise
etiologically related to any in-service
disease or injury. The medical basis for
all opinions expressed should also be
given.
3. Thereafter, the RO should again
consider the veteran's pending service
connection claims for a skin disability
and for pseudofolliculitis barbae in
light of any additional evidence added to
the record. If the benefits sought on
appeal remain denied, the appellant and
his representative should be furnished a
supplemental statement of the case and
given the opportunity to respond thereto.
Thereafter, the case should be returned to the Board, if
otherwise in order. The Board intimates no opinion as to the
ultimate outcome of this case.
The veteran is reminded that it is his responsibility to
appear for any and all scheduled examinations and that
failure to do so could result in the denial of his claims.
38 C.F.R. § 3.655 (2005). The appellant has the right to
submit additional evidence and argument on the matter or
matters the Board has remanded. Kutscherousky v. West, 12
Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005).
____________________________________________
A. BRYANT
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs